COLUMBUS, Ohio (Legal Newsline) - The Ohio Supreme Court says damages for emotional distress stemming directly from a physical injury are to be considered in traditional medical malpractice claims.
In an opinion filed April 20, the Court also said emotional distress stemming directly from a physical injury is not the basis for an independent cause of action for the negligent infliction of emotional distress.
From 1997 to 2004, Lonna Loudin went to Reflections Breast Health Center, owned and operated by Radiology & Imaging Services Inc., to receive yearly mammograms. All of Loudin's mammograms during that time were interpreted as normal. This included a mammogram conducted in 2003, which was reviewed by Dr. Richard Patterson in April that year.
Then, in spring 2004, Loudin detected a lump in her left breast during a self-examination and was referred to Reflections for a diagnostic mammogram. The films from Loudin's May 2004 mammogram revealed a mass that was highly suggestive of malignancy. According to expert witness testimony, the mass had grown from 1 centimeter to about 2 centimeters between 2003 and 2004. Dr. David B. Dellinger conducted a biopsy of the mass, and the pathology report indicated that the mass was cancerous.
After reviewing the pathology report of the biopsy, Dr. Joseph Koenig, Loudin's oncologist, informed Loudin that her treatment plan would probably entail lymph-node dissection, a lumpectomy, radiation therapy and hormone therapy, but would most likely not include chemotherapy if her lymph nodes tested negative for cancer. Dellinger and Koenig recommended the dissection of nearby lymph nodes to determine whether Loudin's cancer had spread to other areas. Two of the eight lymph nodes dissected tested positive for cancer.
Loudin underwent a lumpectomy, eight rounds of chemotherapy, six weeks of radiation therapy and began hormone therapy.
Loudin later filed a complaint asserting medical negligence claims against the defendants, Radiology & Imaging Services Inc., Radiology & Imaging Services Inc., d.b.a. Reflections Breast Health Center, and Patterson.
In her first claim for relief, Loudin alleged that Radiology, as the employer and principal to its employee physicians, including Patterson, had "caused and/or contributed to her injury." In her second claim, Loudin alleged that Patterson had breached the required standards of care when conducting Loudin's regular screenings for breast cancer. In her third claim, Loudin alleged that Radiology had negligently failed to supervise Patterson.
Loudin alleged injuries in the form of a delayed diagnosis of cancer, the progression of untreated carcinoma to Stage IIA breast cancer, the "loss of chance for a better outcome," emotional distress, acute physical, mental and emotional pain and suffering, and a loss of the ability to enjoy a normal life.
In her claims for medical negligence, respondeat superior and negligent supervision, Loudin alleged that the appellants had breached the required standard of care by failing to detect and commence treatment for her cancer upon examination of her 2003 mammography films, which revealed a visible 1 centimeter mass. Loudin amended her complaint on March 5, 2009 to further allege that the appellants' negligence had led to the enlargement of her tumor, metastasis to her lymph nodes, and emotional distress from the fear of an increased chance of recurrence of cancer.
The trial court concluded that Loudin was precluded from making a claim for the negligent infliction of emotional distress because such a claim would require the finder of fact to determine what portion of Loudin's emotional distress was attributable to her initial diagnosis of cancer and what portion was attributable to "her understanding that the untreated cancer had metastasized, thereby changing her diagnosis for the worse."
The trial court also concluded that Loudin's medical negligence claim must fail because "growth and metastasis of cancer are not compensable physical injuries in Ohio." The trial court granted summary judgment in favor of the defendants and against all claims for relief in Loudin's complaint.
However, the Ninth District concluded that the trial court's analysis of negligent infliction of emotional distress was not correct and ruled that Loudin's claims for medical malpractice, and her related claims for respondeat superior and negligent supervision, should have survived summary judgment.
The state's high court affirmed the appeals court's ruling. Justice Yvette McGee Brown authored the Court's 13-page opinion.
"First, the appellants' contention that a plaintiff must physically perceive the cancer's progression in order for it to be a compensable injury is unfounded. The law recognizes that injuries in medical malpractice cases may go undetected for a long time, as evidenced by the tolling of the statute of limitations for medical negligence claims until the plaintiff is or should be aware of the injury," the Court wrote. "There is no requirement in Ohio that a physical injury in a traditional negligence case cause pain or otherwise manifest itself so that the plaintiff is aware of its presence and deleterious effect at all times."
It continued, "When the evidence is viewed in a light most favorable to Loudin, she has raised a genuine issue of material fact as to whether she would have sustained physical injuries greater than those that existed in 2003 but for the appellants' negligence. Specifically, but for the failure to timely diagnose Loudin's cancer, would her tumor have grown from 1 to 2 centimeters, would her cancer have spread to her lymph nodes and advanced from Stage I to Stage IIA, and would she have had to undergo chemotherapy?"
The Ninth District, it said, correctly reversed the trial court's summary judgment decision on Loudin's medical negligence claim.
The Court also said the inclusion of damages for emotional distress in a complaint alleging negligence does not automatically transform the claim into one alleging the negligent infliction of emotional distress, "nor does it automatically create a cause of action separate and distinct from the negligence claim."
"We conclude that Loudin included a claim for damages for emotional distress within the context of her medical negligence claim and that she did not plead a separate cause of action for the negligent infliction of emotional distress. Thus, there was no negligent-infliction-of-emotional-distress claim for either the trial court or the appellate court to accept or reject and their discussions of such a claim were unnecessary," the Court wrote.
From Legal Newsline: Reach Jessica Karmasek by e-mail at firstname.lastname@example.org.